Native Title Fight – Lawyers and bureaucrats win on a TKO


Michael Long’s blistered feet gave Indigenous justice issues a much needed kick-along recently. Soon it will be National Aboriginal and Islander Day of Celebration week, and politicians of all flavours will be there sitting on the ground, acknowledging country, eating bush tucker, and beaming enthusiasm at displays of cultural dancing.

But is anything really happening?

In mid-February, traditional Aboriginal land owners from across Victoria gathered together for an historic meeting to discuss the lamentable lack of progress on native title matters in Victoria.

Thanks to Peter Nicholson from the Australian

Thanks to Peter Nicholson from the Australian

The Preamble to the Native Title Act 1993 is almost poetic. It speaks of ‘ensuring that Aboriginal people receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire’.

Now dry your eyes and take a quick glance up at the scoreboard. Twelve years on, Victoria has yet to break its duck. Total square kilometres of native title area in this great anglicised stronghold: nought.

True, the Native Title Act is remarkably complex. At roughly 370 pages, the document is thick enough to choke a brown dog. But it looks to me as though the emperor is experiencing acute garment deficiency.

Mr Justice North, reviewing native title cases in Victoria in the Federal Court in December last year, observed that there was ‘little to be proud of’.

Indeed, it seems to me that the only people in south-eastern Australia who believe that native title has anything substantial to offer are those who derive their income from it.

There are currently eleven ‘country’ claims – seeking native title over substantial parcels of land – on the lists in Victoria.

Those in the know are whispering that the Wotjobaluk claim, based around the Wimmera River near Horsham, is basically stitched up. But mere members of the public are shielded from such harsh truths by the veil of secrecy which hangs over native title negotiations. What we don’t know won’t hurt us.

In the matter of native title, most of Australia’s pollies have clean hands – but that’s because they’ve been sitting on them. The Victorian Government’s definitive action in the native title arena was its briefing of silks to battle against the Yorta Yorta in the High Court.

Subsequently, the Yorta Yorta have negotiated directly with the state government to resolve their claim through a co-management agreement with a few trimmings. Other claimant groups are also talking turkey in an effort to break the deadlock.

The ‘take your backyard away’ mentality is alive and well in Victoria. The state government spent big bucks patting itself on the back in glossy television advertisements promoting its marine parks. But the public purse apparently will not stretch to a desperately needed public education campaign on native title.

Mind you, there’s no shortage of rhetoric from the Victorian Government about the great virtues of non-litigated settlements. Attorney General Rob Hulls told Victorians in October 2002 that a native title agreement with the Wotjobaluk people was basically a done deal. But, so far, nothing. Mr Hulls is a lawyer and must know that justice delayed is justice denied.

However, native title doesn’t produce justice; it produces paper. If all of the documents assembled in the name of native title could be laid out paid page by page – and the area that they cover given over in freehold to Indigenous Australia – then we’d have justice.

The public service is bursting at the seams with willing wordsmiths who can construct long, pompous documents that are almost unintelligible to their ultimate employer, Joe Public. These miserable missives are manufactured in the name of democratic government.

Now ‘democracy’ is almost as popular as Kylie. No-one’s got a bad word to say about it. But if the bureaucracy becomes an instrument of obfuscation then democracy is not well served. (As in: ‘Don’t step in that horse obfuscation’.)

Perhaps we need a ‘Ten Point Plan’ under which senior bureaucrats and responsible ministers would receive a point for every native title outcome they achieve. Each year in which they gained ten points they could be permitted to retain the last 20 per cent of their salary.

Or maybe a ‘BIC Amendment’ that would allow Indigenous leaders to take a ball-point pen to the legislation and rewrite it in a way that might produce a smidgen of justice?

The public service is meant to keep the wheels turning. The size of the wheels and the direction in which they turn are matters for our elected guardians, under instruction from the public.

It’s called ‘public policy’ after all. So let’s not go putting obstacles in the way of Joe and the rest of the mob contributing to the discussion if they are so minded.

Remember Joe Public? He and his wife and their kids (and the next-door neighbours and the bloke who pumps petrol at the servo and lots of other people besides), walked across bridges at the end of 2000 to make a statement about reconciliation.

Native Title Services Victoria has recently produced a discussion paper that points the way forward towards non-litigated settlement. This document proposes a state-wide land justice settlement to break the deadlock and actually produce some substantial benefits for many Indigenous Victorians. Not before time.

The millions of dollars spent on native title processes in Victoria could have purchased some pretty substantial chunks of land in freehold to be returned to Indigenous ownership. No need to agonise about ‘prevailing rights’ or ‘extinguishment’ here. ‘Commercial interests’ are, by definition, willing to part with their land when the price is right.

So why do the tortuous and expensive wheels of native title grind on? To satisfy the requirements of justice and due process, presumably. What a shame these two great commodities were in such short supply two hundred years ago when we first made the mess.

However, all is not lost. The legal fraternity and the bureaucracies are doing spectacularly well out of the process. The private sector is also dutiful. There are connection reports to be written and genealogies to be constructed.

Opportunities abound for anthropologists and their ilk. Research must be carried out and consultations need to be conducted. The gravy train hath many carriages.

But the punters without a pecuniary interest reckon that native title isn’t worth a cupful of cold custard.

The bridge-walkers are hungry for Indigenous justice. In twelve years all they’ve been served are a couple of snacks. It’s time for a feast of fairness.

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